Wow. What a week for Justice Scalia. His head must still be spinning by what he read and heard this week. There were two moments which I think summed up what could have been his frustration: one of active confrontation and one of silence.
First, the active confrontation. Justice Scalia made one of his ever-more-frequent straw man arguments and, in what I think was a rare occasion, someone punched back hard. Someone in this case being former U.S. Solicitor General Ted Olsen. In the Proposition 8 case, Justice Scalia strongly implied that because Olsen couldn’t define precisely when the Constitution started to protect the rights of gays and lesbians to marry, it must not. And sparks flew.
JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. I’m curious, when -when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?
Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?
MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.
JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true.
But don’t give me a question to my question.
JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?
MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional -
JUSTICE SCALIA: That — that’s not when it became unconstitutional. That’s when they acted in an unconstitutional matter — in an unconstitutional matter. When did it become unconstitutional to prohibit gays from marrying?
MR. OLSON: That — they did not assign a date to it, Justice Scalia, as you know. What the court decided was the case that came before it
JUSTICE SCALIA: I’m not talking about the California Supreme Court. I’m talking about your argument. You say it is now unconstitutional.
MR. OLSON: Yes.
JUSTICE SCALIA: Was it always unconstitutional?
MR. OLSON: It was constitutional when we -as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -
JUSTICE SCALIA: I see. When did that happen? When did that happen?
MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.
JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then -
MR. OLSON: Because the case that’s before you -
JUSTICE SCALIA: — if you can’t give me a date when the Constitution changes?
MR. OLSON: — in — the case that’s before you today, California decided — the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California, and then the Californians decided in Proposition 8, wait a minute, we don’t want those people to be able to get married….
JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.
MR. OLSON: I — I submit you’ve never required that before. When you decided that — that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?
JUSTICE SCALIA: 50 years ago, it was okay?
MR. OLSON: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.
JUSTICE SCALIA: I can’t either. That’s the problem. That’s exactly the problem.
I think Olsen got the best of this exchange. To accept Scalia’s position is to accept that equal protection was being openly defied for almost 100 years. I think it more likely that the “framers” of the 14th Amendment had no intention to, for example, undo laws which prevented interracial marriages or integrated schools. This is the fiction from which “originalists” like to benefit - ignoring that rights denied by this view today are simply the mirror image of rights denied for more than 60 years before the Warren Court recognized them. What also got me was that even Chief Justice Roberts was seeming to get annoyed by this (largely irrelevant to the rest of the Court) diversion into Scalia talking points.
But, onto the (in my mind) more powerful silence. On the next day, while the case involving the Defense of Marriage Act (“DOMA”) was argued, I caught the words “moral disapproval” being tossed around and those words sounded familiar. DOMA is often viewed in the context of the political expediency of the 1990s - Bill Clinton being a centrist Democrat willing to “triangulate” Congressional Democrats in order to be elected. And that’s partially right - after all, 1996 was an election year. And when it began, Bill Clinton’s re-election was not assured (although I think the odds favored it). In the spring of 1996, near the end of the Supreme Court term, the Court issued its opinion in Romer v. Evans. At issue in Romer was a Colorado voter initiative which purported to ban municipalities in Colorado from protecting gays and lesbians from discrimination. In an opinion authored by Justice Kennedy, a 5-4 majority struck down the Colorado initiative as violative of the Constitution’s equal protection clause. In dissent, Justice Scalia wrote the following:
“The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even “animus” toward such conduct. Surely that is the only sort of “animus” at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers [v. Hardwick in 1986]. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons—for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homosexual conduct—that is, it prohibits favored status for homosexuality. But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable.” Romer v. Evans 517 U.S. 620 (1996) (Scalia, J. dissenting) (emphasis mine)
So, in Justice Scalia’s view, moral disapproval of homosexuality is equivalent to moral disapproval of murder or polygamy and a rational basis for a state to act in this way. Two months later, as a Republican-led House was pushing DOMA, the House Judiciary Committee wrote in a report preceding passage of DOMA:
“This judgment entails both moral disapproval of homosexuality, [footnote omitted] and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. ..It is both inevitable and entirely appropriate that the law should reflect such moral judgments. H.R. 3396 serves the government’s legitimate interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Report of House Judiciary Committee accompanying H.R. 3396, the Defense of Marriage Act.
In a footnote supporting their right to act out of “moral disapproval,” the House Judiciary Committee cited the same passage in Bowers v. Hardwick that Justice Scalia did two months earlier as authority to use “moral disapproval of homosexuality” as a permissible basis for the statute. Fast forward to this week and Justice Kagan, questioning Paul Clement, counsel for House Republicans:
“JUSTICE KAGAN: Well, is what happened in 1996 — and I’m going to quote from the House Report here — is that “Congress decided to reflect [and] honor collective moral judgment and to express moral disapproval of homosexuality.” Is that what happened in 1996?
MR. CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting.”
My, how things change. Although this isn’t much of a concession, “moral disapproval” has gone from an acceptable rational basis for a state to discriminate to - potentially - grounds to strike down DOMA. Justice Scalia, amazingly, had no comment during this exchange. Chief Justice Roberts instead, once current Solicitor General Verilli was speaking, attempted to argue that surely 86 Senators couldn’t have voted out of this motive. Again, how things change. Of course they could have so voted. Justice Scalia was telling them in 1996 that it was OK to do so. Funny how no one mentioned that part.